A federal judge on Monday refused to intervene on behalf of the former owners of the HoltraChem factory who are facing a potential $200 million cleanup of the contaminated site.
Mallinckrodt LLC and United States Surgical Corp. asked the U.S. District Court last Friday to block Maine regulators from requiring them to carry out what could be the largest environmental cleanup in state history.
The DEP has ordered Mallinckrodt, which is a subsidiary of U.S. Surgical, to begin removing an estimated 360,000 tons of contaminated soil buried in landfills at the Orrington site beginning this May.
“We respectfully disagree with the state’s decision to pursue a course of action that risks mercury exposure to the public by excavating materials that are already encapsulated in landfills,” Kathryn Zeigler, director of environmental remediation for Mallickrodt, said in a statement.
But on Monday, Judge John Woodcock denied Mallinckrodt’s request for a temporary restraining order that would have blocked the DEP from carrying out the cleanup order.
That likely will force the company to appeal to the state Board of Environmental Protection while the larger complaint against the DEP is pending with the court.
DEP officials said they were not surprised that the companies had turned to the courts.
“We knew this was going to be a long battle, with many side battles and legal skirmishes, to get Mallinckrodt and U.S. Surgical to clean up the site,” said David Littell, the DEP’s commissioner.
Mallinckrodt, which is the sole former owner of the HoltraChem facility still in business, has spent more than $35 million removing metallic mercury, mercury sludge and contaminated storage tanks and buildings from the 235-acre site. The company is also funding a study of mercury contamination in the Penobscot River.
But the company and DEP officials have disagreed about how to deal with five landfills containing mercury-contaminated sludge and other toxic materials. Mallinckrodt has said the waste should be encapsulated on-site with ongoing monitoring.
The DEP’s Nov. 24 order requires Mallinckrodt to begin removing those landfill soils by May. Soils toxic enough to be considered hazardous waste would be disposed of at a special facility in Canada.
A 2006 study by a division of the U.S. Department of Health and Human Services said that, based on models of projected emissions, removing the soils from the site would not expose neighboring residents to harmful levels. Mallinckrodt has cast doubt on those findings.
The companies allege that they might not receive a fair and impartial appeal hearing from the Board of Environmental Protection because the board relies on DEP staff and the Attorney General’s Office for technical and legal advice.
Mallinckrodt also claims that politics, not science, dictated the decision to order the most aggressive and costly cleanup.
In court filings, the company’s attorneys cite memos and e-mails between DEP staff from 2005 stating that Gov. John Baldacci asked the DEP to pursue the most aggressive cleanup option. Some departmental staffers at the time had supported consolidating all of the contaminated soils on site in a lined landfill.
“For the governor’s office to usurp these responsibilities from the department for political reasons or any other reason violates due process,” Mallinckrodt’s attorneys wrote.
But Littell said the final decision – made more than three years after some of those memos cited by the company – was entirely his although he had support of DEP staff and Baldacci. He said the company cherry-picked a few documents in support of its contentions.
As further evidence of potential political influences, Mallinckrodt pointed out that Littell or another DEP staff member sent a copy of the order to the Bangor Daily News on the day it was signed. However, the newspaper had submitted freedom of information requests to the DEP asking for copies of documents pertaining to the cleanup order.
Littell also said he was surprised by statements in Mallinckrodt’s filings that the company or its attorneys were in any way caught off guard by the department’s decision to issue the order in November.
“The suggestion that they didn’t know about the direction the department was heading is bizarre because Mallinckrodt had threatened several times to stop the dismantling effort [on-site] if we issued a cleanup order,” Littell said.
Mallinckrodt spokeswoman JoAnna Schooler said the company is committed to cleaning up the property and continues to operate wastewater treatment and monitoring facilities.
“Obviously, the [November] order may impact that plan but we cannot comment on ongoing litigation,” Schooler said.
Mallinckrodt and other owners of the HoltraChem facility used mercury to produce chemicals for the papermaking process.
Mercury is a bioaccumulative toxin, meaning concentrations of the toxin increase at each level of the food chain. Mercury is particularly dangerous to pregnant women and young children.